(PC) Holland v. Schuyler ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EVERETT HOLLAND, 1:16-cv-01271-DAD-GSA-PC 12 Plaintiff, AMENDED FINDINGS AND RECOMMENDATIONS, RECOMMENDING 13 vs. THAT THIS CASE BE DISMISSED BASED ON PLAINTIFF’S FAILURE TO COMPLY 14 C. SCHUYLER, et al., WITH A COURT ORDER1 (ECF No. 27.) 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN (14) DAYS 17 18 19 Everett Holland (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights 20 action pursuant to 42 U.S.C. § 1983. This case was initiated by a Complaint filed in Kern 21 County Superior Court on September 29, 2015, case BCV-15-010047-DRL. On August 26, 22 2016, the case was removed to federal court pursuant to 28 U.S.C. § 1441(a) by defendants 23 24 1 The findings and recommendations were amended to reflect that this case should be dismissed based on 25 Plaintiff’s failure to comply with a court order, not on Plaintiff’s failure to state a claim. When a district court dismisses an action because the plaintiff has not filed an amended complaint after being given leave to do so and 26 has not notified the court of his intention not to file an amended complaint, a federal court may deem the dismissal to be for failure to comply with a court order. Fed. R. Civ. P. 41(b). Harris v. Mangum, 863 F.3d 1133 (9th Cir. 27 2017). 28 1 Sergeant R. Esmond, Associate Warden T. Haak, Correctional Officer (C/O) Hunley, C/O 2 Maciejewski, and Associate Warden C. Schuyler. (ECF No. 1.) 3 On August 22, 2017, the court screened the Complaint under 28 U.S.C. ' 1915A and 4 issued an order dismissing the Complaint for failure to state a claim, with leave to amend. 5 (ECF No. 13.) On November 20, 2017, Plaintiff filed the First Amended Complaint. (ECF No. 6 20.) 7 On February 12, 2018, the court screened the First Amended Complaint and entered 8 findings and recommendations to dismiss the case, with prejudice, for failure to state a claim. 9 (ECF No. 24.) On November 8, 2018, the district judge declined to adopt the findings and 10 recommendations and referred the case back to the Magistrate Judge for further screening to 11 assess whether Plaintiff has stated a retaliation claim and if not, whether Plaintiff should be 12 granted further leave to amend to attempt to state such a claim. (ECF No. 26.) 13 On May 10, 2019, the court conducted a supplemental screening of the First Amended 14 Complaint. (ECF No. 27.) The court found that Plaintiff failed to state a cognizable claim for 15 retaliation and dismissed the First Amended Complaint for failure to state a claim, with leave to 16 amend. (Id.) Plaintiff was granted thirty days in which to file a Second Amended Complaint 17 curing the deficiencies found by the court. (Id.) 18 The thirty-day time period has expired, and Plaintiff has not filed a Second Amended 19 Complaint or otherwise responded to the court’s order. As a result there is no pleading on file 20 which sets forth any claims upon which relief may be granted. The court should dismiss this 21 case based on Plaintiff’s failure to comply with the court’s order. 22 Accordingly, IT IS HEREBY RECOMMENDED that: 23 1. Pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this case be 24 DISMISSED, based on Plaintiff’s failure to comply with a court order; and 25 2. The Clerk be directed to close this case. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 28 fourteen (14) days from the date of service of these findings and recommendations, Plaintiff 1 may file written objections with the court. Such a document should be captioned “Objections 2 to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 3 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 4 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 5 (9th Cir. 1991)). 6 IT IS SO ORDERED. 7 8 Dated: August 9, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28